On Trial

03.27.14

The Prosecution vs. Oscar Pistorius: The Case So Far

In South Africa, the state abruptly rested its case. As the Olympian’s defense takes over, there’s no telling where this case is going next.

“Everything moves fast with Pistorius—including the speed with which the case against him turned into a smashup of strange behavior,” Amy Davidson of The New Yorker wrote while reporting on the Oscar Pistorius bail application after he shot and killed his girlfriend, Reeva Steenkamp, just over a year ago. It’s an observation that is befitting even now, given how quickly and abruptly the prosecution decided to rest its case on Tuesday, a move that had both the public and legal experts scratching their heads trying to ascertain exactly why everything ended so suddenly, and why many critical questions had been left unanswered.

The prosecution’s decision is no doubt part of an elaborate trial strategy that we can only speculate about. What we do know now is that while the prosecution has been able to mine some solid empirical facts and convincing circumstantial evidence, none of the evidence, material or otherwise, has so far yielded any sort of truly conclusive breakthrough for either sets of counsel, at least not enough to furnish any further clues of what Pistorius’s chances may be.

This is why it is so crucial that Pistorius takes the stand, which he may do as early as tomorrow when the defense initiates its proceedings. (South African legal experts have suggested, however, that it is unlikely that he will testify prior to the defense’s forensic witnesses, in case he alludes to something that might contradict their findings.) “Everything will fall into place when he takes the stand, and his case needs to be watertight if he’s going to get off,” notes one South African legal observer who chose not to be named. “The paucity of evidence from the state has been a huge bonus for the defense, but even then Pistorius acted so unreasonably that he’s got a huge mountain to climb during the next phase of testimony.”

PISTORIUS’S AFFIDAVIT

A brief recap of Pistorius’s version of events for the uninitiated: The Paralympic gold medalist is hinging his case on mistaken identity, specifically putative private defense, which in legal speak means that he misjudged his need for self-defense, genuinely believing that he was in danger and was using what he believed were reasonable means to avert an attack on himself and/or his property. The state is contesting this, arguing premeditation and that the accused acted both with intention and full awareness of the unlawfulness of the act.

On the night in question, Pistorius told investigators that he and Steenkamp retired to bed at roughly 10 p.m. after a quiet night in. Pistorius said he slept on Steenkamp’s side of the bed (the left-hand side) to ease the pain of a shoulder injury he had sustained. In the early hours of the morning, presumably before 3 a.m., Pistorius said he woke up and, without his prosthetics, went to retrieve two fans left out on his balcony, closing the sliding doors, blinds, and curtains after doing so. He reported he heard a noise from the bathroom, and, in a paranoid state fueled by the added vulnerability of being on his stumps, grabbed his 9mm pistol from under the bed and moved toward the bathroom. He opted not to switch the lights on, apparently out of fear. He shouted out to both Steenkamp and the intruder, fired four shots into the door, shouted again for Reeva to call the police, and returned to the bed to find that she was missing. On realizing that he may have shot his girlfriend, he hurried back to the bathroom door to try to free her. He rushed back to put on his prosthetics, grabbed a cricket bat, called for help, and proceeded to break down the door. Seconds later, he made three calls: One to the estate manager Johan Stander (3:19 a.m.), one for an ambulance (3:20 a.m.), and one to the estate’s security personnel (3:21 a.m.)

If one were to recreate the timeline from the testimonies of the five neighbors—Michelle Burger and her husband, Charl Johnson; Estelle van der Merwe; and Johan and Anette Stipp—the incident would have played out quite differently:

It is the state’s contention that Steenkamp was killed around 3:17 a.m. At around 1:56 a.m., van der Merwe (who lives 107 yards away) said she was awakened by sounds of shouting and went back to sleep. She, along with the Stipps (who live 79 yards away), was later awoken by four loud bangs at roughly 3 a.m., followed by screams from woman and man yelling for help. Burger and Johnson (193 yards away) reported they woke up to “blood-curdling screams” and a man yelling for help, but only heard four loud bangs after they called security at 3:16 a.m. Anette Stipp, who testified this week, claims to have heard the second round of bangs at 3:17 a.m., which would corroborate Burger and Johnson’s testimony, although her clock is “between 2-4 minutes” fast, putting the adjusted time at around 3:13 to 3:15 a.m. Johan Stipp was on the phone to police at 3:16 a.m. and said he heard shots shortly thereafter.

Each witness acknowledged the quick succession of the second set of bangs—and all said they believed those bangs, which the defense has repeatedly insisted were the sounds of a cricket bat, were in fact gunshots. All of the witnesses said they heard screaming and the sound of a man yelling help before the second set of shouts. Neither Johnson nor Burger said they heard male and female voices overlap, although Johan Stipp claimed that they were intermingled. Burger said she heard screaming after the second shots; the Stipps say they heard nothing. No one disputes that the screaming came from a woman. “In my recollection, I am 100 percent absolutely convinced it was a woman,” said Anette Stipp, who added that she saw lights on in both the toilet cubicle and the bathroom. Like her fellow witnesses, she had determined two distinctly different vocal pitches.

WHAT QUESTIONS SHOULD HAVE BEEN ASKED?

So many. The first point of consideration: If the clock of one witness was several minutes fast, what’s to say that the clocks of other witnesses weren’t slightly adjusted as well? Whether this was determined or measured in any form is unknown. There have been arguments down to the nanosecond regarding the order of events of that evening, and there is no disputing that the outcome of the trial will weigh heavily on the reliability of that chronology. Can we ascertain that everyone’s clocks were synced to a correct time? The greatest concern thus far is exactly how accurately the different pieces of witness testimony fit together in the greater puzzle of what went down between 3 and 4 a.m. that night, and how they measure up against Pistorius’s recollection of events when he eventually takes the stand.

In his affidavit, Pistorius reported that he had been a victim of violence and burglaries before. Yet Adriaan Maritz, a warrant officer from the Boschkop police department and the 20th witness sworn in, contested that crime at the Silver Woods Estate was relatively low by South African standards, with only eight crimes occurring between 2011 and 2013. He also testified that there was no record of Pistorius’s name in the Boschkop system, either as a victim or perpetrator, although he had previously been arrested in 2009 for alleged assault (though never formally charged).

Samantha Taylor, the ex-girlfriend who took the stand on fifth day of the trial, mentioned that Pistorius had awakened her several times during their relationship after hearing what he believed were suspicious noises. He also typically slept on the right side of the bed. His justification for sleeping on the left side of the bed that night may have been permissible if Steenkamp’s overnight bag and shoes weren’t neatly placed on the same side, raising serious questions about who slept where.

His justification for sleeping on the left side of the bed that night may have been permissible if Steenkamp’s overnight bag and shoes weren’t neatly placed on the same side.

And then there is the matter of the light. Kenny Oldwadge, a senior member of Pistorius’s legal counsel and the man who cross-examined Anette Stipp this week, dismissed Stipp’s assertion that she had seen lights on in the house, because the light in the toilet cubicle was supposedly broken. If that’s the case, then why would Steenkamp have closed the door and subjected herself to total darkness?

BOTCHED FORENSICS

No one can argue that the forensic component to this case was always going to be a huge advantage for the defense, considering how the South African police bungled the crime scene and got itself accused of theft in the process. It was also the most excruciating element of the trial thus far, first because of the grisly details of autopsy and ballistics testimony, and second due to the mind-numbing recital of procedural details that involved one too many photo albums and a forensic analyst pretending to be disabled while picking a fight with Pistorius’s reconstructed bathroom door.

The one thing that both the state and the defense can agree upon here is that Pistorius was on his stumps during the shooting. Whether he was on his stumps or prosthetics at the time that he used the cricket bat is still up for debate, although in conducting his analysis, Col. J.G. Vermeulen did seem convinced that the cricket bat marks could not have been made by someone of normal height, at least not comfortably. Unfortunately, Vermeulen lacked an air of cogency, most likely due to nerves, and was not as convincing.

On the other hand, ballistics expert Capt. Christiaan Mangena provided the court with one of the more redeeming testimonies from the forensic side, and may have single-handedly salvaged any sort of wreckage the defense tried to make of state forensics. The most essential piece of information we took away from this was that Steenkamp was standing facing the door in a defensive position when she was shot. This, in conjunction with forensic pathologist Gert Saayman’s opinion that it would have been “abnormal” for Steenkamp to not have screamed during those four shots, suggests that Pistorius is in for a punishing line of questioning from the state when he finally does take the stand. In hindsight, the police mishandling of the scene did surprisingly little damage to evidence, which only served to make the defense’s attempt at muckraking seem even more feeble than before.

Another huge knock to the accused: the testimony of firearms trainer and salesman Sean Renns, who had sold several firearms to Pistorius and assured the court that the Paralympian had a thorough understanding of the lawful and unlawful use of potentially lethal force against intruders because he had passed a written competency test on the subject. According to Rebecca Davis of The Daily Maverick, Renn’s testimony could “be extremely valuable to the state in making the case that Pistorius could not reasonably have thought that he was entitled to shoot through a door, or that death would not have resulted for whoever was on the other side of it.”

For many of those who have followed the case closely, there is a pervasive feeling that more evidence could have been extracted if prosecutor Gerrie Nel and his team had decided to prolong its case for a few more days. That being said, some legal experts say the state has done enough to harvest a golden thread of evidence that could spell big trouble for Pistorius if Nel manages to trip him up during cross-examination.

“Suddenly, what we have is Oscar Pistorius firing at Reeva Steenkamp while her hands are covering her head while she’s screaming in the toilet, and that’s murder,” defense lawyer Marius du Toit told the Associated Press this month. “A golden thread of someone who was screaming and who was shot. The objective facts, which are the injuries she sustained, coupled with the expert opinion, tied with your circumstantial evidence presented by witnesses. And if that ties up with one another then Oscar has got a major problem.”

Everything boils down to intent. If the state can prove that Pistorius had not only intention but the knowledge of the unlawfulness of his conduct, then there is an exceptionally high chance that he will be convicted of murder. However, the state has yet to make a convincing case for premeditated murder, having failed to produce any concrete reason as to why Pistorius would want to kill his girlfriend. Starting Friday, the defense will try everything it can to obfuscate the state’s narrative, which will surely include a highly competent forensic team and perhaps other neighbors who could present a vastly different chronology of events. The rest of the trial will hinge on Nel’s abilities as a cross-examiner, and whether or not he can break Pistorius when the time comes.